Donald James Smith was detained, released under program for violent sexual predators

Kate Howard Perry

Saturday

Jun 29, 2013 at 12:29 AM

The first time the state could have indefinitely locked up the man charged with killing Cherish Perrywinkle, they let him out when he promised he'd get drug and psychosexual treatment.

The second time, they no longer deemed Donald James Smith a threat.

The third time, a plea bargain kept Smith out of state prison and made him ineligible to be deemed a "violent sexual predator."

The chances to keep Smith in sex offender treatment started in 1999, with the most recent in 2012.

Smith, charged last Saturday in the kidnapping and death of 8-year-old Cherish, had been considered once to be dangerous enough to be held under a state law that keeps sex offenders in forced treatment even after their prison sentences expire.

After three years, Duval County court records show, prosecutors dismissed the petition to keep him involuntarily committed at the Florida Civil Commitment Center in Arcadia with the condition that he continue to be treated at his own cost.

The case was brought under the Jimmy Ryce Act, which was passed in 1998 after the 9-year-old was kidnapped, raped and murdered in Miami-Dade County.

All state prisoners with certain sexually motivated convictions are reviewed for possible detention under the act, which allows the state to hold them indefinitely for treatment after their sentences expire if they're deemed to be violent sexual predators.

Harry Shorstein, who was state attorney at the time, said he didn't recall the case.

"I do remember we were very, very aggressive on Jimmy Ryce cases," Shorstein said.

Jackelyn Barnard, spokeswoman for State Attorney Angela Corey, did not return a call for comment.

The Department of Children and Families only makes recommendations to prosecutors on which offenders should be detained as violent sexual predators, but it's up to prosecutors to make the case.

Dan Montaldi, administrator of the sexually violent predator program, said everything was done properly in Smith's case on DCF's end.

"There are a lot of different decisions they have to make whether a case should be taken to trial," he said. "That's best answered by [prosecutors]."

STEPS NOT TAKEN

In 1999, the Florida Department of Children and Families recommended Smith be involuntarily committed. And though he was held for three years, records show and DCF officials said, prosecutors never took the steps to actually deem Smith a violent sexual predator in a civil proceeding to make the commitment indefinite. DCF officials said that was not an unusual time frame in the early years of the program.

Smith had sex-related offenses in the 1970s and 1980s, but his first conviction covered by the Jimmy Ryce Act came in 1993.

Police said Smith tried to lure a 13-year-old girl into his van in Jacksonville in 1992 and chased her into a park, and later that day showed pornography to children.

He served almost five years before getting paroled in 1997.

Duval County records show he was arrested twice in 1998 in Jacksonville - including a lewd and lascivious conduct charge - and sent back to prison for violating parole on the kidnapping case.

He was scheduled to be paroled again on March 9, 1999, and DCF ordered a "clinical interview." Doctors determined Smith met the criteria of a violent sexual predator. The assistant secretary for mental health sent a letter to a prosecutor recommending the office "take further steps to continue appropriate proceedings" for involuntary civil commitment.

That step could have kept Smith in the Arcadia facility indefinitely, until doctors deemed his treatment successful and decided it was safe to release him. Several times throughout the three years, Smith's attorney challenged the case and the constitutionality of the law in asking that the petition be dismissed. Several depositions were taken in preparation for trial.

But in 2002, prosecutors agreed to release Smith instead of holding a civil commitment trial. The prosecutor and defense attorney agreed Smith would pay for and receive drug and psychosexual treatment until "successful completion" of both.

The agreement also included the condition that Smith not commit any other offenses.

POSING AS DCF WORKER

Six months later, Smith was charged with passing worthless checks. In April 2003, he was charged with felony burglary and dealing in stolen property.

Though the State Attorney's Office could've revived the petition for commitment, it did not, choosing instead to let Smith's new criminal case proceed.

He served more than two years on that charge and was released in 2006, when DCF again reviewed him for a potential commitment.

Any new prison term can trigger a new review, Montaldi said.

But this time, DCF's evaluator did not recommend that Smith be detained for treatment. DCF officials said the evaluations contain protected health information and declined to release them.

Generally, Montaldi said, the inmate would have had to meet three criteria: one sexually motivated conviction as defined in the law, a diagnosed mental abnormality or personality disorder, and the likelihood that the mental disorder would cause acts of sexual violence without confinement.

"The generalities are going to be, for example, does someone have a history of at least one physical contact offense? What's the degree of violence? How many offenses?" Montaldi said. "They look at predatory patterns and how much time in the community does the individual have without a known new sex offense."

In 2009, Smith picked up a new case that could've triggered what would have been his third review for Jimmy Ryce Act criteria.

He was accused of posing on the phone as a DCF worker and asking sex-related questions to a 9-year-old girl.

Smith threatened to put the girl's family members in jail while still posing as a DCF worker and arranged a meeting with the girl and her grandmother at a Callahan McDonald's, according to police.

He was later arrested based on telephone records and other evidence, but a 2012 plea bargain reduced the charges from aggravated child abuse to misdemeanors and a petition to name him a "habitual offender" was dropped.

The reduced sentence meant Smith served at local jail, not prison. Montaldi said an inmate has to be in state custody to be reviewed for involuntary commitment.

That plea, which was based in part on a mother's refusal to let her fearful daughter testify, allowed Smith to get out of jail on May 31, three weeks before Cherish's murder.

Kate Howard Perry: (904) 359-4697

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